VOTING AGREEMENT
THIS SHAREHOLDER VOTING AGREEMENT (the "Agreement") is entered into as
of December 3, 1998, between Philips Business Electronics International B.V., a
shareholder (the "Shareholder") of FEI Company, an Oregon corporation ("FEI"),
and Micrion Corporation, a Massachusetts corporation (the "Company").
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, FEI, the Company and MC Acquisition Corporation are entering into an
Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), pursuant to which the Company will merge (the "Merger") with MC
Acquisition Corporation, upon the terms and conditions set forth therein; and
WHEREAS, the Shareholder owns a majority of the outstanding capital
stock of FEI and desires that the Merger occur;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. Representations of Shareholder. The Shareholder represents that it
(a) is the holder, free and clear of all liens and encumbrances, of 9,942,423
shares of the Common Stock of FEI (the Shareholder's "Shares"), (b) does not
beneficially own (as such term is defined in the Securities Exchange Act of
1934, as amended (the "1934 Act")) any shares of the Common Stock of FEI other
than its Shares, except for 1,242,048 shares of Common Stock of FEI that the
Shareholder has a right to receive upon exercise of certain options held by
holders of options to purchase shares of Common Stock of FEI and (c) has full
power and authority to make, enter into and carry out the terms of this
Agreement.
2. Agreement to Vote Shares. The Shareholder agrees to vote its Shares
and any New Shares (as defined in Section 6 hereof), and shall cause any holder
of record of its Shares or New Shares to vote in favor of (a) a proposal (the
"Amendment Proposal") to approve and adopt an amendment to the Articles of
Incorporation of FEI to increase the number of authorized shares of the Common
Stock of FEI to allow the issuance of shares of Common Stock of FEI included in
the Merger Consideration (as defined in the Merger Agreement) and (b) a proposal
(the "Issuance Proposal" and, together with the Amendment Proposal, the
"Proposals") to approve the issuance of shares of Common Stock of FEI pursuant
to the Merger Agreement and the Stock Purchase Agreement. The Shareholder agrees
to deliver to Xxxxxxxx X. Xxxxxxxx, President of the Company, immediately upon
request therefor a proxy substantially in the
form attached hereto as Exhibit A, which proxy shall be irrevocable to the
extent permitted by law (except that such proxy shall be deemed automatically
revoked upon a termination of this Agreement), with the total number of his
Shares and any New Shares correctly indicated thereon.
3. No Voting Trusts. After the date hereof, the Shareholder agrees that
it has not and will not, nor has it or will it permit any entity under its
control to, deposit any of its Shares in a voting trust or subject any of its
Shares to any arrangement with respect to the voting of such Shares other than
agreements entered into with the Company.
4. No Proxy Solicitations. The Shareholder agrees that it will not, nor
will it permit any entity under its control to, (a) solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the 0000 Xxx) in opposition to or competition with the Proposals or
otherwise encourage or assist any party in taking or planning any action which
would compete with or otherwise serve to interfere with or inhibit the timely
approval of the Proposals, (b) directly or indirectly encourage, initiate or
cooperate in a shareholders' vote or action by consent of FEI's shareholders in
opposition to or in competition with the Proposals or (c) become a member of a
"group" (as such term is used in Section 13(d) of the 0000 Xxx) with respect to
any voting securities of FEI for the purpose of opposing or competing with the
approval of the Proposals. 5. Transfer and Encumbrance. Except for gifts given
without consideration where the recipient thereof agrees to execute a voting
agreement in form and substance similar to this Agreement, on or after the date
hereof, the Shareholder agrees not to voluntarily transfer, sell, offer, pledge
or otherwise dispose of or encumber any of its Shares or New Shares prior to the
termination of this Agreement in accordance with its terms.
6. Additional Purchases. The Shareholder agrees that it will not
purchase or otherwise acquire beneficial ownership of any shares of the Common
Stock after the execution of this Agreement ("New Shares"), nor will it
voluntarily acquire the right to vote or share in the voting of any shares of
the Common Stock other than the Shares, unless it agrees to deliver to the
Company immediately after such purchase or acquisition a proxy substantially in
the form attached hereto as Exhibit A, which shall be irrevocable to the extent
permitted by law (except that such proxy shall be deemed automatically revoked
upon a termination of this Agreement) with respect to such New Shares. The
Shareholder also agrees that any New Shares acquired or purchased by it shall be
subject to the terms of this Agreement to the same extent as if they constituted
Shares.
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7. Specific Performance. Each party hereto severally acknowledges that
it will be impossible to measure in money the damage to the other party if a
party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other party will not have an adequate remedy at law or
damages. Accordingly, each party hereto severally agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that the other party has an adequate remedy at law. Each
party hereto severally agrees that it will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with any other
party's seeking or obtaining such equitable relief.
8. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns and shall not be assignable without the written consent of all other
parties hereto.
9. Entire Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the subject matter hereof, and this
Agreement supersedes all prior agreements, written or oral, between the parties
hereto with respect to the subject matter hereof. This Agreement may not be
amended, supplemented or modified, and no provisions hereof may be modified or
waived, except by an instrument in writing signed by all the parties hereto. No
waiver of any provisions hereof by any party shall be deemed a waiver of any
other provisions hereof by any such party, nor shall any such waiver be deemed a
continuing waiver of any provision hereof by such party.
10. Miscellaneous
(a) This Agreement shall be deemed a contract made under, and for all
purposes shall be construed in accordance with, the laws of the State of The
Commonwealth of Massachusetts.
(b) If any provision of this Agreement or the application of such
provision to any person or circumstances shall be held invalid by a court of
competent jurisdiction, the remainder of the provision held invalid and the
application of such provision to persons or circumstances, other than the party
as to which it is held invalid, shall not be affected.
(c) This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
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(d) This Agreement shall terminate upon the earliest to occur of (i)
the consummation of the Merger or (ii) termination of the Merger Agreement.
(e) All Section headings herein are for convenience of reference only
and are not part of this Agreement, and no construction or reference shall be
derived therefrom.
(f) The obligations of the Shareholder set forth in this Agreement
shall not be effective or binding upon it until after such time as the Merger
Agreement is executed and delivered by the Company, FEI and MC Acquisition
Corporation. The parties agree that there is not and has not been any other
agreement, arrangement or understanding between the parties hereto with respect
to the matters set forth herein.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
MICRION CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Chairman, President
and CEO
PHILIPS BUSINESS ELECTRONICS
INTERNATIONAL B.V.
By: /s/ Xxxx Xxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxxx
Title: CFO and Vice President
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EXHIBIT A
FORM OF PROXY
The undersigned, for consideration received, hereby appoints Xxxxxxxx
X. Xxxxxxxx, President of the Micrion Corporation ("Micrion"), and Xxxxx X..
Xxxxxx, and Vice President and Chief Financial Officer of the Micrion, its
proxy, with power of substitution, to vote all shares of common stock of FEI
Company, an Oregon corporation ("FEI"), owned by the undersigned at the upcoming
Special Meeting of Stockholders of FEI, and at any adjournment thereof, FOR
approval and adoption of (i) an amendment to the Articles of Incorporation of
FEI to increase the number of authorized shares of the Common Stock of FEI to
allow the issuance of shares of Common Stock of FEI included in the Merger
Consideration (as defined in that certain Merger Agreement, dated as of December
1, 1998, between the FEI, Micrion and MC Acquisition Corporation) and (ii) a
proposal to approve the issuance of shares of Common Stock of FEI pursuant to
the Merger Agreement and the Stock Purchase Agreement, and AGAINST any proposal
that would compete with or serve to interfere or inhibit the timely adoption
thereof. This proxy is coupled with an interest and is irrevocable until such
time as the Voting Agreement, dated as of December 3, 1998, among the
undersigned and Micrion terminates in accordance with its terms.
Dated , 199
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PHILIPS BUSINESS ELECTRONICS
INTERNATIONAL B.V.
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Name:
Title:
